Changes Coming to Sexual Assault Provisions in the Criminal Code

Written on Behalf of Affleck & Barrison LLP

We have blogged extensively about sexual assault, as public debate about this offence continues to rage in light of multiple newsworthy events in recent years, and as the law evolves in recognition of changing norms.

Earlier this week, Canada’s Justice Minister introduced Bill C-51, which seeks to remove 20 criminal offences that are currently outdated or have been invalidated by court decisions, and clarify other exisitng provisions, including sexual assault provisions. The move is the Liberal government’s efforts to clean up the Criminal Code and other laws to accurately reflect changes in our understanding of critical issues.

Among the expected changes is an amendment that will explicitly state that a sexual assault complainant cannot consent to sex if they are unconscious, and that sexts or photos or videos cannot be used to discredit a complainant.

What Does This Mean?

Consent

The amended sexual assault provisions will not define or answer the question “how intoxicated is ‘too intoxicated’ to consent to sex”- that determination will remain in the hands of judges who will continue to make decisions on a case by case basis.

Currently, case law states that consent requires the ongoing, conscious agreement of both parties engaging in sexual activity while that activity is taking place. This should be clear, but unfortunately, it is not always, and consent or the credibility of one or both of the parties becomes the primary issue in sexual assault proceedings.

Rape Shield Provisions

Additionally, under current rape shield provisions, a complainant’s private medical records are not admissible at trial, unless the accused can establish that the records are critical to disproving the allegations, or vital to the accused’s constitutional right to a fair trial. However, the medical records cannot be used to support an accused’s claim that the complainant is somehow blameworthy in the alleged assault, more likely to have consented to sexual activity, or less credible.

The proposed changes would add emails, texts, other communications, as well as other personal records (e.g.: diaries, counseling records) to the list of records that are inadmissible under rape shield provisions.

The proposed changes would also clarify that sexting as well as emails, pictures, or videos with sexual content sent before or after an alleged assault could not be used against a complainant, and would also be subject to rape shield provisions.

Legal Counsel for Sexual Assault Complainants

The Bill also provides that sexual assault complainants have a right to their own legal counsel where rape shield questions are at issue. A judge would have to inform the complainant of that right and be required to consider their objections to having their private records and communications heard in court.

“Mistaken Belief”

The proposed changes would also codify existing restrictions on when an accused can use the defence of an “honest, but mistaken belief” that the complainant consented to sex. For instance, it is not legally possible to claim that the complainant’s failure to resist or protest meant that there was consent. Similarly, an accused cannot claim ignorance of the law or misunderstanding of what consent entails.

We will continue to follow the progression of this Bill and will blog about updates as they become available. In the meantime, if you have been accused of sexual assault or any related charges, contact the Oshawa criminal defence lawyers at Affleck & Barrison LLP online or at 905 404 1947. We offer 24-hour phone services and a free confidential consultation and we are available when you need us most.

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